92 Decision Citation: BVA 92-13766
Y92
BOARD OF VETERANS' APPEALS
WASHINGTON, D.C. 20420
DOCKET NO. 92-00 704 ) DATE
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THE ISSUE
Entitlement to an increased (compensable) rating for
bilateral hearing loss with tinnitus.
REPRESENTATION
Appellant represented by: Department of Veterans Affairs,
Alabama
ATTORNEY FOR THE BOARD
Siobhan Brogdon, Associate Counsel
INTRODUCTION
This matter came before the Board on appeal from an original
grant of service connection for bilateral hearing loss with
tinnitus rated no percent disabling by rating action dated
in October 1991 from the Montgomery, Alabama Regional Office
(hereinafter RO). The veteran served on active duty from
July 1970 until July 1974. The notice of disagreement was
received in November 1991. The statement of the case was
issued in November 1991. The substantive appeal was
received in January 1992. The appellant is represented in
this matter by the Alabama Department of Veterans Affairs.
The case is now ready for appellate review.
CONTENTIONS OF APPELLANT ON APPEAL
The appellant asserts that he has great difficulty
understanding people if there is background noise. He
maintains that he has been told by a VA examiner that he has
permanent nerve damage of both ears. He notes that it has
been recommended that he learn to lip-read to aid him in
conversation. It is contended that he also has constant
ringing of the ears and has trouble sleeping at times. For
these reasons, it is argued that a compensable rating is
warranted for the service-connected hearing loss with
tinnitus.
DECISION OF THE BOARD
For the reasons and bases hereinafter set forth, it is the
decision of the Board that the record supports a compensable
evaluation for bilateral hearing loss with tinnitus.
FINDINGS OF FACT
1. All relevant evidence necessary for an equitable
disposition of the veteran's appeal has been obtained by the
RO.
2. The veteran has a pure tone threshold average of
25 decibels in the right ear with speech discrimination
ability of 92 percent and a pure tone threshold average of
30 decibels in the left ear with speech discrimination
ability of 96 percent. These findings correspond to level I
hearing, bilaterally.
3. The veteran has tinnitus of both ears which has been
adequately demonstrated to be persistent and is due to
acoustic trauma.
CONCLUSION OF LAW
Resolving any existing doubt in favor of the veteran,
bilateral hearing loss with tinnitus is 10 percent disabling
according to the schedular criteria. 38 U.S.C. 1155, 5107;
38 C.F.R. 4.85 and Part 4, including Codes 6100 and 6260.
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
We note that we have found that the veteran's claim is well
grounded within the meaning of 38 U.S.C. 5107(a). That is,
we find that he has presented a claim which is plausible.
We are also satisfied that all relevant facts have been
properly developed and that no further assistance is
required to comply with the duty to assist mandated by
38 U.S.C. 5107.
The service medical records reflect that the veteran was
seen in sick bay in 1973 with complaints of ringing of the
ears for the past five months. He stated that the symptoms
never stopped. It was reported at that time that he worked
with small jet engines. Upon examination in June 1974 for
separation from service, an audiometric examination revealed
decibel losses of 25, 25, 20, 15, 15 and 25, 25, 20, 15, 15,
45 and 25, 25, 20, 20, 50, 65 at the 500, 1,000, 2,000,
3,000, 4,000, 6,000 hertz frequencies in the right and left
ears, respectively. It was also noted that he had tinnitus
secondary to high frequency hearing loss.
The veteran filed a claim for service connection for hearing
loss and tinnitus in July 1991. Service connection was
granted for bilateral high frequency loss with tinnitus by
rating action dated in October 1991 and a no percent
evaluation was assigned under the provisions of Diagnostic
Code 6100 of VA's Schedule for Rating Disabilities.
Evaluations of bilateral defective hearing range from
noncompensable to 100 percent based on organic impairment of
hearing acuity as measured by the results of controlled
speech discrimination tests together with the average
hearing threshold level as measured by pure tone audiometry
tests in the frequencies 1,000, 2,000, 3,000 and
4,000 cycles per second. To evaluate the degree of
disability from bilateral service-connected defective
hearing, the revised rating schedule establishes eleven
auditory acuity levels designated from level I for
essentially normal acuity through level XI for profound
deafness. 38 C.F.R. 4.85 and Part 4, Codes 6100 to 6110.
The veteran was afforded a VA audiology examination in
August 1991. An audiometric evaluation performed at that
time demonstrated a pure tone threshold average of
25 decibels in the right ear with speech discrimination
ability of 92 percent and a pure tone threshold average of
30 decibels in the left ear with speech discrimination
ability of 96 percent. These findings correspond to level I
hearing, bilaterally.
A no percent rating is assigned for bilateral defective
hearing where the pure tone threshold average in one ear is
25 decibels, with speech recognition ability of 92 percent
correct, (level I), and, in the other ear, the pure tone
threshold average is 30 decibels, with speech recognition
ability of 96 percent correct, (level I). 38 C.F.R. 4.85
and Part 4, Code 6100. It is clear that under the
provisions of the rating schedule pertaining to hearing
loss, the level of auditory acuity for the veteran's
service-connected bilateral hearing impairment corresponds
to a noncompensable evaluation.
Diagnostic Code 6260 of the rating schedule does provide for
a 10 percent disability evaluation if it can be demonstrated
that any tinnitus, as a symptom of head injury, concussion
or acoustic trauma, can reasonably be found to be
persistent. In this regard, the Board has taken into
careful consideration the history of the service-connected
disability in which references to tinnitus indicate a degree
of constancy. Moreover it is apparent that such resulted
from acoustic trauma in service. On most recent VA
audiology examination in August 1991, the veteran reported
that he had bilateral constant tinnitus, and had had such
since 1973. The Board thus resolves any existing doubt in
favor of the veteran by finding that tinnitus is persistent
and warrants a 10 percent evaluation under the provisions of
Diagnostic Code 6260 of VA's Schedule for Rating
Disabilities.
ORDER
An increased rating for bilateral hearing loss with tinnitus
is granted subject to controlling regulations governing the
payment of monetary awards.
BOARD OF VETERANS' APPEALS
WASHINGTON, D.C. 20420
NANCY R. ROBIN B. KANNEE
ALBERT D. TUTERA
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C. § 7266 (1992),
a decision of the Board of Veterans' Appeals granting less
than the complete benefit, or benefits, sought on appeal is
appealable to the United States Court of Veterans Appeals
within 120 days from the date of mailing of notice of the
decision, provided that a Notice of Disagreement concerning
an issue which was before the Board was filed with the
agency of original jurisdiction on or after November 18,
1988. Veterans' Judicial Review Act, Pub. L. No. 100-687,
§ 402 (1988). The date which appears on the face of this
decision constitutes the date of mailing and the copy of
this decision which you have received is your notice of the
action taken on your appeal by the Board of Veterans'
Appeals.